Citation Nr: 0820079
Decision Date: 06/19/08 Archive Date: 06/25/08
DOCKET NO. 05-39 432 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to a rating in excess of 10 percent for post-
traumatic osteoarthritis of the left knee.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Scott Shoreman, Associate Counsel
INTRODUCTION
The veteran had active service from September 1963 to
September 1966.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2005 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant when further action is required.
REMAND
In a June 2005 rating decision, the RO rated the veteran's
post-traumatic osteoarthritis of the left knee as 10 percent
disabling as of March 15, 2005. The veteran contends that
his left knee disability is more disabling than currently
evaluated. Having carefully reviewed all of the evidence of
record, the Board is of the opinion that further development
of the record is necessary.
Under 38 U.S.C.A. § 5103A, VA has a duty to assist the
veteran, including providing a medical examination when such
an examination is necessary to make a decision on the claim.
However, if an examination report does not contain sufficient
detail, it is incumbent upon the rating board to return the
report as inadequate for evaluation purposes. See 38 C.F.R.
§ 4.2 (2007).
The veteran testified at the March 2008 hearing that at his
VA examination in November 2006 the physician did not examine
him, said "it" was not going to change, and questioned why
he was there. He also testified that he gets pain when he
extends his knee all the way. The veteran described having
to sleep with a pillow in between his legs because of knee
pain and said that the pain is getting worse. In addition,
the veteran testified that his left knee is unstable, that he
can feel it in his knee when the weather changes, that he has
difficulty walking on uneven surfaces, and that he does not
go out as much in cold weather as much as he used to because
he is worried about falling.
The November 2006 VA examination report states, "The
claimant tells me that he does not know why he is summoned
for this examination as he tells me that he did not make a
claim - which is hard to believe but possible." The
physician, who also examined the veteran in April 2005, wrote
that there was "absolutely no interval change" in the
veteran's left knee since April 2005. He wrote that on
examination the veteran's gait was normal without any
assistive devices. The physician also opined that the left
knee continued to look "entirely normal" and demonstrated
extension to 0 degrees and flexion to 100 degrees without
pain. In addition, the physician wrote that there was no
history of buckling or pain flare up. The diagnosis from the
November 2006 examination was relatively asymptomatic post-
traumatic osteoarthritis of the left knee. There was no
indication from the physician that he reviewed the veteran's
claims file. In light of the above, the Board finds that the
veteran's November 2006 VA examination was insufficient for
the purpose of determining service connection.
At his March 2008 hearing the veteran submitted an
authorization for records to be obtained from Dr. V, a
private physician from whom he received treatment, along with
a waiver of RO review of any new evidence presented. The
Board, as an appellate body, is not authorized to develop new
evidence, but the undersigned granted the veteran 30 days
after the hearing to submit any additional records he could
obtain. None have been received.
VA is required to make reasonable efforts to obtain relevant
records on behalf of claimants. In addition, VA is allowed
to refrain or discontinue providing assistance in obtaining
evidence if a substantially complete application indicates
that there is no reasonable possibility that any assistance
provided would substantiate the claim. Circumstances in
which VA can refrain from providing assistance include, but
are not limited to, the claimant's ineligibility for the
benefit sought, claims that are inherently incredible or
clearly lack merit, or an application requesting a benefit to
which the claimant is not entitled as a matter of law.
38 C.F.R. § 3.159(d) (2007). The records from Dr. V do not
fit under any of the exceptions under § 3.159(d). The
claimant indicated that Dr. V treated him for his left knee,
and he submitted an appropriate release form. Thus, VA is
required to seek those records, so we will ask the RO to
attempt to obtain them.
Accordingly, the case is REMANDED for the following action:
1. With the authorization provided by the
veteran, the RO should attempt to obtain any
additional evidence not of record which
pertains to the claim for service connection
for post-traumatic osteoarthritis of the left
knee, to include from Dr. V. The RO should
also invite the veteran to submit all
pertinent evidence in his possession, and
explain the type of evidence that is his
ultimate responsibility to submit.
2. After all available records and/or responses
from each contacted entity have been
associated with the claims file, or the time
period for the veteran's response has expired,
the RO should arrange for the veteran to
undergo a VA examination by a physician other
than the one who examined him in November 2006
and April 2005. The claims file, to include a
complete copy of this Remand, must be made
available to the examiner, and the report of
the examination should include discussion of
the veteran's documented medical history and
assertions. All appropriate tests and studies
and/or consultation(s) should be accomplished
(with all findings made available to the
examiner(s) prior to the completion of his or
her report), and all clinical findings should
be reported in detail.
3. Thereafter, the RO should readjudicate the
veteran's claim for post-traumatic
osteoarthritis of the left knee. If the
benefits sought on appeal remain denied, the
veteran and his representative should be
provided with a supplemental statement of the
case (SSOC).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision
of the Board of Veterans' Appeals is appealable to the U.S.
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a final
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2007).